Horton-Hughes Furniture Co. v. Broad Street Hotel Co.

Wade, C. J. The Civil Code (1910), § 5184 (Acts of 1857, p. 104), provides that no writ of certiorari shall be granted or issued, except to the court of ordinary, unless the party applying for the same, his agent, or attorney, shall make and file with his petition an affidavit verifying the statements of fact in the petition, and also alleging that “the petition for certiorari is not filed in (the case for the purpose of delay only.” In the case of Willims v. Mangum, 119 Ga. 628 (46 S. E. 35), it was held, that “Where the judge of the superior court sanctions a petition for certiorari which is not properly verified, and in his answer to the writ the justice of the peace fully supports and corroborates the averments of the petition in all material particulars, it is too late to dismiss the certiorari on the ground that the averments of the petition are not sufficiently verified.” See also Taylor v. State, 118 Ga. 52 (44 S. E. 834); Bass v. Masters, 5 Ga. App. 288 (63 S. E. 24); Epperson v. Kitchens, 2 Ga. App. 322 (58 S. E. 501). In the opinion in Willims V. Mangum, supra, it was said that “The failure to verify! the petition is a good reason for the judge to refuse to sanction it (Paulk v. Hawkins, 106 Ga. 206 [32 S. E. 122]; but after the petition has been sanctioned, and the answer of the magistrate filed, it is too late to dismiss the certiorari for the defect in the affidavit, if the answer supports the allegations of the petition).” Nevertheless, in discussing the statutory requirement (supra) that the affidavit shall set forth that the petition is not filed for the purpose of delay only, and reviewing the case of Taylor v. Gay, 20 Ga. 77, the Supreme Court held in Velvin v. Austin, 109 Ga. 200, 203 (34 S. E. 335): “Even, if the [91] answer of the judge whose decision is sought to be reviewed by the certiorari would cure a defect in that part of the‘affidavit which is intended to verify the averments of the petition, it could not, in any event, have the effect of curing a defect arising in the fact that the applicant had failed to swear that the petition was not filed for the purpose of delay only.” It appears from the record on file in the case of Wiüims v. Mangum, supra, that the affidavit in that case contained the statement that the petition for certiorari was not filed for delay only, although it failed to verify the statements of facts in the petition. The answer of the magistrate in this case, though verifying the statements of fact in the petition, could not establish or determine that the petition was not filed for the purpose of delay only, and, in the absence of an affidavit to that effect, the certiorari would be subject to dismissal, as held in the Velvin case, supra, as to any plaintiff in certiorari who failed to make such an affidavit. “When two or more joint defendants against whom a judgment has been rendered apply for a writ of certiorari, and only one of them verifies the petition as prescribed in . . the Civil Code, he alone should be treated as a plaintiff in certiorari.” Velvin v. Austin, supra. The petition for certiorari appears to have been brought by Horton-Hughes Furniture Company, and was verified by the affidavit of one W. D. Horton, which recites that “I, W. D. Horton, of Horton-Salmon' Furniture Company, do solemnly swear that' the petition for certiorari is not filed in this ease for the purpose of delay only,” etc. - The judge on motion dismissed the certiorari as to Horton-Hughes Furniture Company, “as a partnership,” and sustained it as to W. D. Horton individually. Hnder the foregoing rulings the dismissal was not error. If there be any conflict between the decision in Velvin v. Austin, supra, and what is said in Taylor v. State, supra, and Willims v. Mangum, supra, this court must follow the older decision, which has not been disaffirmed or criticised by the Supreme Court. Judgment affirmed. Jenkins and Luke, JJ., concur.